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Application to Tennessee Supreme Court

   

IN THE SUPREME COURT FOR THE STATE OF TENNESSEE

 

CITY OF KNOXVILLE, Appellee

Docket No. E-2008-00850-COA-R3-CV

v.

 

KNOX COUNTY

CIRCUIT COURT 3-83-07

JOSHUA DAVID KIMSEY, Appellant.

______________________________________________________________________

APPLICATION FOR PERMISSION TO APPEAL

______________________________________________________________________

 

 

 

 

 

 

DAVID B. HAMILTON (BPR # 020783)

1810 Merchant Drive, Suite 1

Knoxville, Tennessee 37912

Phone: (865) 219-9250

E-mail: dbh@dbhamilton.com

CHRISTOPHER E. ROWE (BPR#023862)

1810 Merchant Drive, Suite 2

Knoxville, Tennessee 37912

Phone: (865) 643-4000

E-mail: CRowe1517@hotmail.com

______________________________________________________________________

APPLICATION FOR PERMISSION TO APPEAL

______________________________________________________________________

Joshua D. Kimsey, (hereinafter referred to as "Appellant") makes application for permission to appeal the decision of the Tennessee Court of Appeals in this case pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. Important constitutional rights of the citizens are eroded by the decision of the Tennessee Court of Appeals by the reduction in the privilege against self incrimination in a penal matter, the unwillingness to correct its own error in the application of ex post facto / retrospective law, and the failure to follow, or even address, the application of Dillon’s Rule among other authorities. The breath of the violations of constitutional rights by the City of Knoxville should not stand as all citizens suffer at each loss of protected right. This is not an appeal to support running red lights just as an appeal of a criminal conviction is not an appeal to support that criminal activity. Rather, this is an appeal to give this Court the opportunity to step back from the money generated by the program and look at the important constitutional questions raised by the law specific to this Appellant. The public deserves an answer to the questions presented.

In support of this application and as required by Rule 11(b) of the Tennessee Rules of Appellate Procedure, the following statements are provided:

1. The Decision of the Court of Appeals

The decision of the Tennessee Court of Appeals in this case was filed and judgment in this case entered on May 13, 2009. A motion to rehear was filed and denied on June 15, 2009. This application for Permission to Appeal is filed within the time allowed by Rule 11(b) of the Tennessee Rules of Appellate Procedure. Attached to this application is the opinion of the Court of Appeals filed May 13, 2009 and a copy of the Order on Petition to Rehear, filed June 15, 2009, (Appendix A). Also attached for your consideration is a copy of the offending Citation (Appendix B), applicable City of Knoxville Ordinances (Appendix C); City of Knoxville v. Brown, 2008 WL 2925370 (Tenn. Ct. App. 2008) (Appendix D); and the Contract between the City of Knoxville and Redflex (Appendix E).

 

2. The Questions Presented for Review

a. Whether the Court of Appeals impermissibly limited the Constitutional privilege against self-incrimination by finding that admissions obtained by silence may be used by the government against a defendant in a penal matter, all in violation of the Fifth Amendment to the U.S. Constitution or Tenn. Const. art. I § 9? ISSUE OF FIRST IMPRESSION

b. Whether the prior decisions of this Court in support of Dillon’s Rule were to be controlling authority for the Court of Appeals to apply to the Appellant’s appeal as the State of Tennessee had expressly, at the time of the alleged violation, revoked the authority of municipalities to mirror state traffic ordinances?

c. Whether the Court of Appeals impermissibly applied retrospectively (or ex post facto) Tenn. Code Ann. § 55-10-307, enacted May 10, 2007, when the alleged violation is charged to have occurred on December 1, 2006, a time in which Tenn. Code Ann. § 55-10-307 had been repealed as of June 27, 2006, all in violation of appellant right under Tenn. Const. art. I §§ 11 and 20 or U. S. Cont. art I § 10 and U. S. Cont. amend. XIV?

d. Whether first class mail summons in violation of Tenn. Code Ann. § 6-54-305 and the City of Knoxville Home Charter codified at Knoxville Code § 8-1, is offensive to due process?

e. Whether the imposition by a city of a $67.50 processing fee in an alleged ordinance violation matter, without any hearing or judgment and without any authority, is offensive to due process and a taking in violation of the Fifth Amendment?

f. Whether the court of appeals correctly found that the Constitutional protections of due process and privilege against self incrimination are not infringed by the citation received by appellant, or the practice used not offensive to the Constitution where the citation does not provide for hearing on a date certain or the citation impermissibly shifts the burden of proof?

g. Whether the due process rights of the Appellant are infringed where the City of Knoxville did contract to a private corporation police power and the private corporation is in control of the gathering of evidence the control of evidence and assembly of citations prior to any involvement of law enforcement officers, as the principle that a state’s sovereign powers may not be delegated to third parties is implicated?

 

 

3. The Facts Relevant to the Questions Presented

1. Knoxville Code § 17-210 was enacted February 1, 2005.

2. Tenn. Code Ann. § 55-10-307 was repealed on June 27, 2006.

3. That Defendant Joshua D. Kimsey was the registered owner of a motor vehicle failed to stop at a red light and that the act of driving said motor vehicle across the stop bar while the traffic signal was displaying an illuminated red light violated Section 17-506(a)(3)(a) of the Code of Ordinances of the City of Knoxville, on December 1, 2006.

4. That ownership of a motor vehicle entering an intersection against an illuminated red light, in violation of Section 17-506(a)(3)(a), renders the registered owner responsible for the unlawful use of that automobile pursuant to Section 17-210 of the Code of Ordinances of the City of Knoxville, subject to certain exceptions noted in the ordinance and said citation, KR00024846, was mailed to Appellant via first class mail and included the statement "failure to respond to this notice will result in a $67.50 processing fee" which a sum in addition to "$50.00" the "penalty." (I R., 3).

5. Tenn. Code Ann. § 55-10-307 was enacted on May 10, 2007.

6. Tenn. Code Ann. § 55-8-110(d) was enacted on July 1, 2007.

7. Tenn. Code Ann. § 55-8-110(d) was repealed on July 1, 2008.

8. Tenn. Code Ann. § 55-8-198 was enacted on July 1, 2008.

9. The trial court ruled that Appellant did not hold a privilege against self incrimination which would prevent the City of Knoxville from using silence to a Request for Admissions as evidence against the Appellant

 

 

 

4. The Reasons Supporting Review by the Supreme Court

a. Whether the Court of Appeals impermissibly limited the Constitutional privilege against self incrimination by finding that admissions obtained by silence may be used by the government against a defendant in a penal matter, all in violation of the Fifth Amendment to the U.S. Constitution or Tenn. Const. art. I § 9?

The Court of Appeals found that the Appellant must invoke affirmatively his Fifth Amendment and Tenn. Constitutional privilege against self incrimination in a penal matter. Further, the Court of Appeals also found that silence can be used by the government against the Appellant, in a penal matter, to obtain an advantage in the ultimate outcome. This decision is not in accord with prior decisions and is an imperishable limiting of a privilege important to all citizens.

This matter is a penal matter and is punitive and triggers constitutional protections. Paying a fine without remedial purpose "is intended to be punitive and a deterrent, [and therefore] constitutional protections are triggered." City of Chattanooga v. Davis, 54 S.W.3d 248, 278 (Tenn. 2001); see also Austin v. United States, 509 U.S. 602, 610, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); Stuart v. State Dept. of Safety, 963 S.W.2d 28, 33 (Tenn.1998); Metropolitan Gov't of Nashville and Davidson County v. Miles, 524 S.W.2d 656, 660 (Tenn.1975).

The Court of Appeals specifically cited a case in support of the proposition that an affirmative duty exists that the Appellant voice his privilege and that he cannot rely upon silence in this penal matter. The case relied upon by the Court for the proposition that Appellant must invoke affirmatively his Fifth Amendment right in the civil case actually found that since the statute of limitations had expired on the criminal matter the Fifth Amendment right "was not available to Richardson." Richardson v. Tenn. Bd of Dentistry, 913 S.W.2d 446, 462 (Tenn. 1995). In this matter the statute of limitations as this Appellant had not expired.

Silence in reliance of the Fifth Amendment is not a waiver of the Fifth Amendment in a penal matter as the Fifth Amendment prohibits the State from commenting that the silence of the accused is evidence of guilt. Griffin v. California, 380 U.S. 609, 615, 87 S.Ct. 1229, 1233 (1965). While it is clear law that a court may invoke an "imposition of liability for damages on the basis of traditionally civil causes of action." State Dep’t of Children’s Services v. M.P., 173 S.W.3d 794, 810 (Tem. Ct. App. 2005) (citation omitted) (emphasis added). This matter is not a "traditionally civil cause of action" it is the penal imposition of a fine.

The Supreme Court of the State of Tennessee has already found that where a civil matter seeks penal punishment that three constitutional protections co-exist. In Miles double jeopardy, right of counsel, and privilege against self-incrimination were held to be fundamental protections applicable to civil ordinances where the effect is penal. Miles found double jeopardy exists in civil penal matters.

"Ineluctable logic leads to the conclusion that the constitutional protection against double jeopardy, as is the case with the right of counsel and the privilege against self-incrimination, is applicable to all proceedings, irrespective of whether they are denominated criminal or civil"

Metropolitan Government of Nashville and Davidson County v. Miles, 524 S.W.2d 656, 659 (Tenn. 1975) citing United States of America v. Dickerson, 168 F.Supp. 899 (D.C.1958) emphasis in original

At no time does this record reflect any notice to the defendant of the right to counsel prior to the filing of the Request for Admission or the Motion to have the request deemed as facts at trial. An additional constitutional protection implicated by the effort of the City of Knoxville to impermissibly violate the Appellant’s privilege against self-incrimination.

City of Knoxville in its imposition of punishment for a penal matter converted silence into proof. It is clear error for the Court of Appeals to find that the Appellant held any duty to affirmatively respond to a request for admission as fact as the now "fact" was a seeking of admission of criminal behavior in a penal matter where the statute of limitations had not expired. This error is compounded by the error of the City of Knoxville when it failed to adequately inform this defendant of the right to counsel.

It is an issue of first impression in the State of Tennessee whether a constitutional protection, specifically the privilege against self-incrimination, survives when in conflict with the civil rules of procedure. When these two are in conflict which rule controls?

 

b. Whether the prior decisions of this Court in support of Dillon’s Rule were to be controlling authority for the Court of Appeals to apply to the Appellant’s appeal as the State of Tennessee had expressly, at the time of the alleged violation, revoked the authority of municipalities to mirror state traffic ordinances?

"Dillon's Rule," is a common law canon of statutory construction which "stands for the principle that local governments possess and can exercise only (1) powers granted in express words; (2) powers necessarily or fairly implied in or incident to the powers expressly granted; and (3) powers essential to the accomplishment of the declared objects and purposes of the entity-not simply convenient, but indispensable." Shorts v. Bartholomew, 278 S.W.3d 268, 276 (Tenn. 2009). Further, that "[a]ny fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the local entity, and the power is denied." Shorts v. Bartholomew, 278 S.W.3d 268, 276 (Tenn. 2009).

In this matter the State of Tennessee specifically revoked the power of municipalities to mirror state traffic laws in any manner when it repealed Tenn. Code Ann. § 55-10-307 on June 27, 2006. Tenn. Code Ann. § 55-10-307 is the statute which specifically granted municipalities authority to adopt ordinances related to the issue before this Court. All authority to mirror by ordinance any traffic statute was revoked on June 27, 2006, prior to Appellant’s alleged infraction, on December 1, 2006.

Appellant’s rights were set at that time and are not affected by any post-event modification of ordinance or enactment of any state law. See U.S. Const. Fifth Amend., Tenn. Const. art. 1, §11, Tenn. Const. art. 1, § 20.

Here the ordinance imposes liability on the owner for an alleged violation of an act, a red light violation, preempted by State law. The City of Knoxville was without authority to enforce any city ordinance which intruded upon the area of law which the State reserved for itself. The City of Knoxville remained free to issue state citations for violations of any state law and therefore continued to enjoy the privilege of protecting citizens. Even if the City of Knoxville enjoyed the right to mirror traffic ordinances, Knoxville Code § 17-210 fails to mirror state law.

Mirroring is allowed in certain circumstances to grant authority for a city court to hear ordinance violations which are generally preempted by state statute. Tenn. Code Ann. § 16-18-302. Without mirroring the court is without jurisdiction. Here Tenn. Code Ann. § 55-8-110(a) "apply to drivers" and Tenn. Code Ann. § 55-8-109(a) states "The driver of any vehicle . . ." and Tenn. Code Ann. § 55-8-101(14) states: "Driver" means every person who drives or is in actual physical control of a vehicle"

It is error not to address the mirroring of state statutes as it existed at the time of the alleged violation, not in an ex-post facto/retrospective manner. Knoxville Code § 17-210 is void by failing to mirror the moving violation statute, and thus the trial court was without jurisdiction as to this Appellant.

c. Whether the Court of Appeals impermissibly applied retrospectively (or ex post facto) Tenn. Code Ann. § 55-10-307, enacted May 10, 2007, when the alleged violation is charged to have occurred on December 1, 2006, a time in which Tenn. Code Ann. § 55-10-307 had been repealed as of June 27, 2006, all in violation of appellant right under Tenn. Const. art. I §§ 11 and 20 or U. S. Cont. art I § 10 and U. S. Cont. amend. XIV?

As set forth in Appellant’s brief and addressed at oral argument the ex-post facto / retrospective application of law by the Court of Appeals is repugnant (where Tenn. Code Ann. § 55-10-307, enacted June, 2007, five months after the citation was issued in this matter). Without reference to the afore stated "Dillon’s Rule" it is unconstitutional and offensive for the Court of Appeals to rely upon ex-post facto / retrospective application of law where the Court has actual notice of the constitutional challenge.

Reliance upon Brown by this Court in it’s opinion, with knowledge that the statutory basis relied upon in Brown was an ex-post facto/retrospective application of law, is clear error. City of Knoxville v. Brown, 2008 WL 2925370 (Tenn. Ct. App. 2008)(where Brown relies extensively and exclusively upon the ex-post facto / retrospective application of Tenn. Code Ann. § 55-10-307). Appendix D.

Without reference to Dillon’s Rule it is clear error not to address the State of Tennessee preemption of all traffic ordinances during the time of Appellant’s alleged infraction, December 1, 2006. Since Tenn. Code Ann. § 55-10-307 was repealed on June 27, 2006, the City of Knoxville’s only potential other authority, if it is sufficient in light of "Dillon’s Rule" requires mirroring, Tenn. Code Ann. § 16-18-302. Here the ordinance imposes liability on the owner and therefore does not mirror the traffic statute. Tenn. Code Ann. § 55-8-110(a) "apply to drivers" and Tenn. Code Ann. § 55-8-109(a) states "The driver of any vehicle . . ." and Tenn. Code Ann. § 55-8-101(14) states: "Driver" means every person who drives or is in actual physical control of a vehicle" It is clear error not to address mirroring as existed at the time of the alleged violation, not in an ex-post facto/retrospective manner. Ordinance 17-210 is void by failing to mirror the state moving violation statute, and the original trial court was without jurisdiction. It is clear error to fail to address these facts and law.

Further, the Court of Appeals’ attempt to rely upon Tenn. Code Ann. § 55-8-198 (2008) enacted after the alleged violation, through its incorporation of the Brown decision, is offensive and repugnant to the constitution as an ex-post facto/retrospective application of law to this individual. The Court of Appeals was fully informed of the issues with which it was confronted and still failed to address the issue before it. Outcome based decisions which are logically inconsistent should not be allowed to stand.

Reliance upon either of the non-existing statues, is misplaced as neither statute existed at the time of the alleged violation, T.C.A. § 55-10-307 or T.C.A. § 55-8-198; furthermore such reliance on the aforementioned is barred by the U. S. Cont. art I § 10, or the Tenn. Const. art. 1 § 11 (or if deemed civil barred by Tenn. Const. art. 1 § 20). State v. Ricci, 914 S.W.2d 475 (Tenn. 1996); Metropolitan Government of Nashville and Davidson County v. Miles, 524 S.W.2d 656, 659 (Tenn. 1975), Warren v. City of Athens, 411 F.3d 697 (6th Cir. (Ohio) 2005).

Is it now the law that statutes can be applied in an ex-post facto/retrospective manner in a civil penal matter in Tennessee? Rights matter, otherwise all citizens are at the mercy of the whim of convenience. Protecting the rights of an Appellant is not always easy, but it is the duty of this Court to do so.

d. Whether first class mail summons in violation of Tenn. Code Ann. § 6-54-305 and the City of Knoxville Home Charter codified at Knoxville Code § 8-1, is offensive to due process?

Knoxville Charter art. 1 § 8-1 provides that "The city judge shall issue process on the complaint of any person when it appears to the city judge that any provision of this Code or other ordinance of the city has been violated. He shall try no case until process has been regularly sued out, served and returned." Emphasis added. A home rule charter is an enactment of the State of Tennessee legislature and the City of Knoxville is without authority to modify the provisions of the Charter without expressed authority which does not exist within the Charter.

Knoxville Code § 17-210(b)(2) states in part that "The citation or warning shall be forwarded by first-class mail to the owner's address as given on the motor vehicle registration. Personal service of process on the owner shall not be required ." emphasis added. However, Knoxville Code § 8-1, Tenn. R. Crim. P. Rule 4, Tenn. R. Civ. P. Rule 4, and Tenn. Code Ann. § 6-54-305 all require personal service of summons or process by certified mail. Indeed, appropriate service is fundamental to the jurisdiction of a Court to enforce any ordinance. Subject matter jurisdiction cannot be waived.

Constitutional protections and the due process of law which meet minimum standards of jurisprudence cannot be waived nor abrogated by statute or ordinance. U.S. Const. amend. V, U.S. Const. amend. XIV, and Tenn. Const. art. I, §§ 8 and 14. Jurisdiction does not exist where service of process did not occur within the period, or in the manner prescribed by law. Toler ex rel. Lack v. City of Cookville, 952 S.W.2d 831 (Tenn. Ct. App. 1997) Appl. Perm. Denied. Indeed, in Katzenberger v. LAWO, 16 S.W. 611 (Tenn. 1891) it was found that municipalities may not enact an ordinance in conflict with existing law. Here the existing law requires personal service on the person of the defendant, certified mail, or other approved methods of service of process. None of the approved methods of service of process include first class mail.

Due process of law is enshrined by our Constitutions. Notice to a civil suit requires issuance of a summons. Tenn. R. Civ. P. Rule 4. Notice to a criminal matter requires an arrest warrant or criminal summons be issued and returned. Tenn. R. Crim. P. Rule 4. Indeed, the two summons are alike as the "criminal summons shall be served in the same manner as a summons in a civil action." Tenn. R. Crim. P. Rule 4(d)(4). Therefore the minimum requirement for due process, civil or criminal matter, is a confirmation to the trial court that the defendant, civil or criminal, has legal notice of the offense. U.S. Const. amend. V, U.S. Const. amend. XIV, and Tenn. Const. art. I, §§ 8 and 14.

No guarantee exists that any first class mail arrives at its proper destination. Indeed, even certified mail has been known to disappear and the "return" never actually returned. This is why return of summons must reflect delivery not simple mailing (not withstanding the failure to pick up the certified mail because due process has been served). Tenn. R. Civ. P. Rule 4.04(10) (11). The summons provisions also operate to prevent the application of Tenn. R. Crim. P. Rule 43(c)(2) where a defendant need not be present if represented by counsel, as Tenn. R. Crim. P. Rule 44 requires that a court execute a written waiver of counsel as every indigent defendant "shall be entitled to have assigned counsel. . . ."

As constitutional protections exist as relates to penal matters, Constitutionally valid notice requires more than first class mailing of the citation, summons, warrant or any other initiating document. Therefore, it is a direct violation of due process for the City of Knoxville to rely upon first class mail notice of citation mailing. The practice is a direct violation of due process protections. U.S. Const. amend. V, U.S. Const. amend. XIV, Tenn. Const. art. 1 § 9, Tenn. Const. art. 1 § 14.

Indeed, even where service by mail is allowed by statute, for nonmoving traffic violations, the service must be by "registered mail or certified mail . . . in lieu of personal service of process." Tenn. Code Ann. § 6-54-305. Therefore, if the red light ordinance is for a non-moving traffic violation then the service by first class mail expressly violates the statute. If the red light ordinance is for a moving traffic violation then the service by first class mail expressly violates the procedure of summons set forth in the civil and criminal rules of procedure.

Good law is logically consistent. Here it is logically inconsistent that liability could be imposed in this matter by the use of service by first class mail but that any judicial enforcement of the collection effort would require as a minimum certified mail process. The logical inconsistency is cured by adherence to constitutionally mandated application of law and procedures which comport with due process.

Therefore any ordinance which provides for first class mail notice is constitutionally repugnant and void ab initio. Edwards v. Allen, 216 S.W.3d 278 (Tenn. 2007) See also State v. Kuhlman, 729 N.W.2d 577, 583-584 (Minn. 2007)(where the procedural protections available to defendants may not be reduced by ordinance). It was clear error for the Trial Court not to dismiss the alleged violation of Knoxville Code § 17-210.

e. Whether the imposition by a city of a $67.50 processing fee in an alleged ordinance violation matter, without any hearing or judgment and without any authority, is offensive to due process and a taking in violation of the Fifth Amendment?

It is offensive to Constitutional protections and due process for the City of Knoxville to charge a "processing fee" without any authority. Indeed, without any judicial finding of fact or liability how could any court cost, if this is to be a cost, ever be levied on any defendant. Any "processing fee" charge is void without any basis in law. As a "court cost" any "processing fee" is void without any specific finding of fact and law by a judge even the threat to collect the sum is offensive to the Constitutions of the United States and the State of Tennessee. U. S. Cont. art III § 2, U.S. Const. amend. V, U.S. Const. amend. VI, U.S. Const. amend. VII, U.S. Const. amend. XIV, and Tenn. Const. art. I, §§ 8, 9, 14, and 17. See also Batson v. Pleasant View Utility Dist., 592 S.W.2d 578, 581 (Tenn. Ct. App. 1979) (appl. for perm. denied); Broyles v. State, 341 S.W.2d 724 (Tenn. 1960).

Indeed, the law of Tennessee mandates that court costs or "administrative fees" be detailed as the Supreme Court states:

[I]f the City of Chattanooga desires to recover its reasonable administrative expenses incurred in enforcing its municipal ordinances, it will be required to provide a detailed statement of these expenses to the defendant as they were incurred in the individual case. A detailed and individualized statement of administrative costs will serve to assure the individual that he or she is not being assessed for the costs of enforcing offenses for which others are responsible, and it will enhance appellate review of these expenses to ensure that municipal courts do not assess punitive sanctions under the guise of recovering "administrative expenses."

City of Chattanooga v. Davis, 54 S.W.3d 248, 274-275 (Tenn. 2001). Therefore, the assessment of "processing fees", is offensive to the law of Tennessee, and the assessment of court fees, not implicated here, must be detailed and the afore stated citation fails to provide any detail, and none have been provided.

The assessment of "processing fees" or threat to assess "processing fees" is an unconstitutional deprivation of a right arising under Tenn. Const. Art. VI § 1 in that no judgement should ever enter except by a Court of competent jurisdiction. It is a fundamental right that all accused persons shall be judged, not auto entered into a collection service or assessed $67.50 as the "failure to respond to this notice will result in a $67.50 processing fee." No authority exists under any statute or law to assess any "$67.50 fee" – period. Further, under the table of costs lists for the City of Knoxville Municipal Court no cost can ever add up to $67.50. Indeed, the fees and costs exceed $50.00 then Tenn. Const. art. VI § 14 is directly implicated.

The assessment of $67.50 is not supported by Knoxville Code § 17-210. No provision exists within the code to assess any "processing fee." Without color of law the assessment of any "processing fee" is in specific direct violation of the Constitutional prohibition. "[N]or shall any person . . . be deprived of . . . property, without due process of law . . . ." U.S. Const. amend. V see also Tenn. Const. art. 1 § 8 ("That no man shall be . . . deprived of his . . . property, but by the judgment of his peers or the law of the land). Indeed, the taking of money without specific authority is a violation of due process and offensive to the U.S. Const. amend XIV.

The assessment of a "processing fee" is an additional affront to the Constitutional guarantee, implicit, that all judgments are rendered by competent courts, that the judgment shall comport with due process, and that any taking be in accord with expressed law.

f. Whether the court of appeals correctly found that the Constitutional protections of due process and privilege against self incrimination are not infringed by the citation received by appellant, or the practice used not offensive to the Constitution where the citation does not provide for hearing on a date certain or the citation impermissibly shifts the burden of proof?

The citation received by Appellant is constitutionally defective because it provides for the default finding of guilt, with no set hearing and no review by any court UNLESS the recipient requests a hearing. This is an unconstitutional depravation of rights arising under Tenn. Const. art. VI § 1 in that no judgement should ever enter except by a court of competent jurisdiction.

It is clear error of this Court not to address the shifting of the burden of proof, as the Minnesota Supreme Court addressed this issue head on finding "[t]he problem with the presumption that the owner was the driver is that it eliminates the presumption of innocence and shifts the burden of proof from that required by the rules of criminal procedure." State v. Kuhlman, 729 N.W.2d 577, 583-584 (Minn. 2007). Especially repugnant is that, at the time of the violation, December 1, 2006, no authority existed for any owner of a vehicle to be liable for any act of a driver in a punitive matter.

It is clear error to find that the automatic entry of judgment without a hearing set does not offend the Constitution. In this State even parking tickets are noticed to Court on a date certain. Due process as a minimum requires hearing on a date certain. See U.S. Const. amend. V, U.S. Const. amend. XIV, Tenn. Const. art. 1 § 9, Tenn. Const. art. 1 § 14.

Appellant is amazed that he is in the position of defending the sanctity of the judicial system, a system designed to protect the rights of the citizens of the State of Tennessee. It was clear error of the Court of Appeals to rule that the citizens of the State of Tennessee shall be subject to an automatic entry of judgment without hearing on a date set.

g. Whether the due process rights of the Appellant are infringed where the City of Knoxville did contract to a private corporation police power and the private corporation is in control of the gathering of evidence the control of evidence and assembly of citations prior to any involvement of law enforcement officers, as the principle that a state’s sovereign powers may not be delegated to third parties is implicated?

The Attorney General of the State of Tennessee has opined that a contract between a municipality and a third party may not violate the principle that a state’s sovereign powers may not be delegated to third parties. Such a contract "is effectively delegating to the private company . . . the manner of enforcement and the enforcement itself of the city’s traffic ordinances." Op. Tenn. Att’y Gen. No. 06-150 (Oct. 2, 2006). The Tennessee Attorney General got it right that a city is without constitutional or statutory authority to delegate or ‘deprive itself of inherent powers.’ Batson v. Pleasant View Utility Dist., 592 S.W.2d 578 (Tenn. Ct. App. 1979) See also American Chariot v. City of Memphis, 164 S.W.3d 600 (Tenn. Ct. App. 2004)(where the city impermissibly delegated to private citizens power to determine whether legal restrictions could be waived).

City of Knoxville unconstitutionally delegated police power, an essential governmental function, to a private company, Redflex Traffic Systems, Inc., by entering into a contract ultra vires. The City of Knoxville is without the authority to enter into a contract with Redflex which delegates core government functions including but not limited to police power. Any such Contract should be held ultra vires as no provision exists within State law which grants the City of Knoxville authority to delegate or contract police power to a private company. See also Tenn. Code Ann. § 55-10-307.

The City of Knoxville entered into a Contract with Redflex Traffic Systems, Inc., ("Redflex") on December 8, 2005, for the enforcement of violations of Knoxville Code 17-506(a)(3)(A) and provides for violations of the traffic ordinance to be charged to the owner of the vehicle. Knoxville Code § 17-210 does not by its terms provide for any contracting of police power to any third party.

The Contract provides that Redflex select the images, (the only evidence or images which were relied upon by a City of Knoxville police officer in the issuance of the Citation), and created the citation received by the alleged offender. Redflex exercised police power by controlling the images and other Violations Data which were relied upon by the Knoxville Police Officer in the citation issued to the alleged offender. However, this exercise of police power has inherent conflict as Redflex has an economic interest in the enforcement of the Citation and the related payment of civil penalty.

Under the Contract, the Redflex Project Manager "shall be responsible for overseeing . . . the implementation of the Photo Red Light Enforcement Program," which in pertinent part is defined in the Contract to mean "the process by which the monitoring, identification and enforcement of Violations is facilitated." Contract Exhibit B 1.2(X)(emphasis added). (I R., 125)

Because, under the Contract, Redflex is obligated to develop the "Violation Criteria," the City of Knoxville has no right under the Contract to approve Violation Criteria, and in pertinent part Violation Criteria means "the standards and criteria by which Potential Violations will be evaluated by an Authorized Officer, which standards and criteria shall include, but are not limited to, the duration of time that a traffic light must remain red prior to a Violation being deemed to have occurred, and the location(s) in an intersection which a motor vehicle must pass during a red light signal prior to being deemed to have committed a Violation, all of which shall be in compliance with all applicable laws, rules and regulations." The City’s delegation to Redflex of the obligation to develop Violation Criteria is an impermissible delegation of the core governmental legislative and police functions, which is unconstitutional under Article I, Section I of the Tennessee Constitution. Contract para. 1.2(S) (emphasis added); Contract Exhibit B. 1.7; Contract Exhibit D. See also Broyles v. State, 341 S.W.2d 724 (Tenn. 1960). All of which was done without constitutional or statutory authority to delegate or ‘deprive itself of inherent powers.’ "No governmental entity can by contract deprive itself of inherent powers necessary to the performance of its functions or of power or duty imposed upon it by prior express statutory or constitutional provision." Batson v. Pleasant View Utility Dist., 592 S.W.2d 578, 581 (Tenn. Ct. App. 1979) (appl. for perm. denied) (citations omitted).

The Court of Appeal’s opinion overlooks or misapprehends a material fact as the Redflex Contract provides for the private company to develop "Violations Criteria", assemble all the evidence, and create a citation. The citation is reviewed by an officer only after the fact of development of the criteria, evidence assembly and citation creation. Brown fails to address the fact that the creation of the citation is by the private company with an economic interest in the number of citations issued, and that the private company retains all of the evidence to be used in a penal matter. It is clear error to ignore the facts presented and to assume that Brown adequately answers Appellant clear demonstration of fact and proposition of law.

Developing "criteria" is legislative in nature delegated to a private company in a penal matter. While duty to decide to prosecute remains with the officer, the terms by which he makes his decision are controlled in part by the contractor. The City of Knoxville cannot show a distinction between developing criteria by which a citation will issue and legislative action. A city is without constitutional or statutory authority to delegate or ‘deprive itself of inherent powers.’ Batson v. Pleasant View Utility Dist., 592 S.W.2d 578 (Tenn. Ct. App. 1979) See also American Chariot v. City of Memphis, 164 S.W.3d 600 (Tenn. Ct. App. 2004)(where the city impermissibly delegated to private citizens power to determine whether legal restrictions could be waived).

It is impossible, with the existing financial interest of Redflex to divide the gathering and presenting of Violations Data from the financial interest in the issuing and prosecuting of citations. Profit should not be associated with any delegation of police power. Therefore, the method of data collection cannot be divided from the profit motive and the City of Knoxville is not free of "compromising interests and loyalties." State v. Culbreath, 30 S.W.3d 309, 312 (Tenn.2000) (citations omitted); See also State v. Davis, 141 S.W.3d 600 (Tenn. 2004).

The City of Knoxville is contractually required to "diligently prosecute" any citation actually issued in accord with the contract entered between the City of Knoxville and Redflex Traffic Systems, Inc., and the City of Knoxville "shall be obligated to pay, the compensation set forth on Exhibit D attached hereto." Contract Exhibit B 1.4(E)(emphasis added). See also Broyles v. State, 341 S.W.2d 724 (Tenn. 1960).

The City of Knoxville Law Department is obligated to attempt to collect money like a debt collector and is not able to exercise independent prosecutorial judgment free of "compromising interests and loyalties." State v. Culbreath, 30 S.W.3d 309, 312 (Tenn.2000); See also State v. Davis, 141 S.W.3d 600 (Tenn. 2004). Redflex has be contractually delegated both the manner of enforcement and the enforcement itself. Contract at Exhibit D.

The foregoing shows that the City has expressly transferred and abdicated, and deprived itself of, its core sovereign police, law enforcement, lawmaking, and other powers, all of which are too central to the function of the City as a government to be entrusted any non-governmental actor. Batson v. Pleasant View Utility Dist., 592 S.W.2d 578 (Tenn. Ct. App. 1979) See also American Chariot v. City of Memphis, 164 S.W.3d 600 (Tenn. Ct. App. 2004), Broyles v. State, 341 S.W.2d 724 (Tenn. 1960). The City of Knoxville by allowing Redflex to "[d]evelop the Photo Red Light Violations Criteria" and to thereby effectively determine what a violation is, and when and under what circumstances a violation has occurred has actually delegated police power to a private corporation. State ex rel. Lightman v. City of Nashville, 60 S.W.2d 161 (Tenn. 1933). (Police power belongs to the state and passes to local governing bodies only when and as conveyed by legislative enactment).

Neither Tenn. Code Ann. § 16-18-301 nor Tenn. Code Ann. § 55-10-307 provide for contracting of any police power to enforce any provision of State law. Indeed, Tenn. Code Ann. § 55-10-307 enacted at the behest of the City of Knoxville to protect its ability to use photo images for enforcement of Knoxville Code § 17-210 failed to obtain from the State of Tennessee authority to delegate police power. Not one word of either statute provides for contracting away any portion of police power.

The Trial Court erred when it failed to declare the Contract void as the Appellant did move the Court to find the Contract void and did seek dismissal of the alleged violation which is based on impermissibly created evidence by Redflex. City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn. 1988) (where the void contract could not be enforced).

CONCLUSION

Important constitutional rights are implicated by the red light program. Although, this Application is broad, additional issues exist which are not addressed. This Court should allow this matter to be more fully briefed to this Court as the experience of the citizens of the State of Tennessee highlights the risks of private actors making money enforcing law. Specifically, how many persons were actually harmed in Chattanooga when Redflex was caught lowering yellow light durations to increase fines is an on point event highlighting the risks which the public is subjected. The practice of private contracting any police authority will always be suspect and this Court must act to protect the citizens and this Appellant.

It may be more comfortable to ignore the outcome in this matter, but the knowing disregard of rights to this citizen affects all citizens. Silence by the Court serves no valid purpose, and indeed the failure of the Court of Appeals to fully address the due process rights of Appellant has a chilling effect and allows continuing harm.

Reliance on any ex-post facto / retrospective application of law is highly offensive given that the Court has been appraised of the error and has chosen a path which is a prima facie violation of the Constitutions of the United States and the State of Tennessee. It is the duty of this Court to protect the constitutional rights of the citizens of Tennessee. The decision rendered in this case fails to adequately address serious constitutional issues of due process and violations of rights in light of "Dillon’s Rule" and the other cited authorities.

Appellant moves this Court to reconsider the facts and law and issue an opinion which addresses these important issues.

 

 

This August 10, 2009

 

/s/  DAVID B. HAMILTON (BPR # 020783)

1810 Merchant Drive, Suite 1, Knoxville, Tennessee 37912, Phone: (865) 219-9250

/s/ CHRISTOPHER E. ROWE (BPR#023862)

1810 Merchant Drive, Suite 2, Knoxville, Tennessee 37912, Phone: (865) 643-4000

 

CERTIFICATE OF SERVICE

Pursuant to Rules 5(a) and 20 (e) of the Tennessee Rules of Appellate Procedure, I hereby certify that a true and accurate copy of the foregoing filed in this case, with the date on which the foregoing was filed noted thereon, has been properly served upon the following counsel of record by first class mail, postage prepaid:

City of Knoxville, Angela R. Bolton, BPR No. 21396, Assistant City Attorney, 400 Main Avenue, Suite 699, Knoxville, TN 37902

State of Tennessee Attorney General Robert E. Cooper, Jr., Office of the Attorney General, P.O. Box 20207, Nashville, TN 37202-0207

 

This August 10, 2009

/s/ David B. Hamilton



 

 

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